01a55543
03-29-2006
Reynaldo M. Dionisio, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Reynaldo M. Dionisio v. United States Postal Service
01A55543
March 29, 2006
.
Reynaldo M. Dionisio,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55543
Agency No. 4J-600-0083-03
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his formal EEO complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
Complainant, a Full-Time City Carrier at the agency's Franklin Park
Post Office in Franklin Park, Illinois, filed a formal complaint on
May 8, 2003. Therein, complainant claimed that agency discriminated
against him on the bases of race (Filipino) and in reprisal for prior
EEO activity when:
(1) on March 17, 2003, he was issued a Letter of Warning;
(2) on March 1, 8, 18 and 19, 2003, he was not given auxiliary help
and management forced him to work overtime although he was not on the
Overtime Desired List; and
(3) on March 1 and 11, 2003, he submitted a PS Form 3971 for leave. The
requests were denied; however, two co-workers submitted a PS Form 3971
for the same dates and their requests were approved.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge. The agency thereafter filed a motion identified as
"Respondent's Motion to Dismiss Hearing Request."
In its motion, the agency argued that by Docket Entry dated April 28,
2005, complainant was ordered to fully respond to its discovery requests
by May 6, 2005 but that complainant failed to comply with the order.
The agency further argued that by Docket Entry dated May 19, 2005,
complainant was ordered to show cause why sanctions should not be imposed
for failure to respond fully to its discovery requests by June 2, 2005.
The agency argued that it did not receive any response from complainant
concerning the Order to Show Cause. The record further reflects that on
June 24, 2005, complainant failed to appear for the scheduled pre-hearing
conference.
On June 27, 2005, the AJ granted the agency's motion, and directed the
agency to issue a FAD pursuant to EEOC Regulation 29 C.F.R. � 1614.110(b).
In its July 22, 2005 FAD, the agency found no discrimination. The agency
concluded that complainant failed to establish a prima facie case of
disparate treatment on the basis of race because he did not identify
any similarly situated person outside his protected class who was
treated more favorably under similar circumstances. The agency further
concluded that complainant failed to establish a prima facie case of
reprisal discrimination because he did not show that a casual connection
existed between prior protected activity and the adverse agency action.
The agency concluded that complainant did not show that management was
aware of his prior protected activity. The agency further found that
assuming arguendo that complainant established a prima facie case of
race and reprisal discrimination, management articulated legitimate,
non-discriminatory reasons which complainant failed to show was a pretext
for discrimination.
First, the Commission finds no reason to disturb the AJ's decision
to grant the agency's motion to dismiss complainant's hearing request
in favor of a FAD for failure to respond to the agency's two discovery
requests and failure to appear for the scheduled pre-hearing conference.
We now address the merits of this case.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission determines that the agency articulated legitimate,
non-discriminatory reasons for its actions, as reflected by evidence of
record as discussed below.
Regarding claim (1), complainant's former Supervisor stated that on March
17, 2003, she issued complainant a Letter of Warning (LOW) for failure
to follow instructions.<1> Specifically, the former Supervisor stated
that on March 11, 2003, the Postmaster observed complainant returning
from the street with 3 loops of mail (approximately 15 minutes of work)
yet to be delivered. The former Supervisor stated that the Postmaster
questioned complainant why he returned to the office with the mail,
and complainant stated "because the mail was heavy." The former
Supervisor stated that complainant was instructed to finish his route
as previously instructed. The former Supervisor stated that on the same
day, complainant went approximately "35 minutes over. Had he not driven
back to the office and spent time arguing with [Supervisor Customer
Services] he should have been back on time." The former Supervisor
stated because complainant's workload indicated he could deliver his
route in 8 hours, she instructed him "to deliver all his mail prior to
returning to the office." The former Supervisor stated that the "workload
report is based on [Complainant's] past performance only." The former
Supervisor stated that she was not aware of complainant's prior protected
activity. Furthermore, the former Supervisor stated that complainant's
race was not a factor in her determination to issue him a LOW.
Regarding that portion of claim (2) relating to denial of auxiliary
help, the former Supervisor stated that on March 1, 8, 18 and 19, 2003,
complainant was not given auxiliary assistance because "his workload
indicated that he did not need any help." The former Supervisor further
stated that complainant's workload was established using his "proven
performance." The former Supervisor stated that auxiliary assistance
"is given when the supervisor having evaluated the request determines
that the assistance is actually needed,� in accordance to Handbook
M-39, Management Delivery Service. The former Supervisor stated that
supervisors would use the work hour workload reports from a named agency
official "to individually determined the hours needed to completely
deliver the route." The former Supervisor stated that the named agency
official gathered the information from "daily input of volumes and
timekeeping data and each carriers proven performance (established when
the carriers route is walked and timed) included in this calculation is
the carriers actually (from timekeeping) data which is downloaded daily."
With respect to that portion of claim (2) relating to agency management
purportedly forcing complainant to work overtime although he was not on
the Overtime Desired List, the former Supervisor stated that complainant
was instructed before leaving for his route that he was expected to
be back and off the clock in 8 hours. The former Supervisor stated
that complainant was also instructed not to bring mail back with him.
The former Supervisor further stated that complainant "did work what is
known as incidental overtime contractually meaning 1/2 hour or less."
The former Supervisor stated that supervisors would make a determination
on whether sending another carrier is more economical than having the
regular carrier deliver mail. The former Supervisor stated ". . . if
a carrier has to travel 10 minutes to do 15 minutes worth of work, it
costs you 25 min to give aux[ilary] assistance." The former Supervisor
stated that "if the regular carrier who is already on the route completes
the route it only costs you the 15 minutes." The former Supervisor
stated "on average I believe [complainant] work 10-20 minutes with the
exception of when he returned to the office before completing his route."
The former Supervisor stated that a carrier is responsible for maintaining
his leave and return time; and inform his supervisor "on the final pull
of mail what his time projection is." The former Supervisor stated that
the supervisor would then make a decision approving or disapproving the
carrier's request for overtime based on the work hour workload analysis.
The record contains a copy of the Handbook M-39, Section 122.31
which states "before overtime or auxiliary assistance is authorized,
supervisors need to determine "whether: a. Carrier can complete delivery
within scheduled time. b. Leveling the daily workload can be achieved
by observing provisions in Section 612, Postal Operations Manual."
The record further reflects that M-39, Section 122.32, provides that
"when relief is essential, use the following criteria (not necessarily in
the order listed) in determining the most economical manner in providing
it: a. Use overtime when it would be more economical than providing
auxiliary assistance. Consider time in traveling to and from the route,
drive-out cost or carfare cost, availability of replacements, delivery
time, and conservation of fuel."
Regarding claim (3), complainant claimed that on March 1 and 11, 2003,
he submitted PS Forms 3971 requesting eight hours of annual leave
for March 26, 2003 but his requests were denied. Complainant stated,
however, that two named co-workers submitted a PS Form 3971 requesting
leave for March 26, 2003 and their requests were approved. However,
the record contains a copy of complainant's time and attendance record
for March 26, 2003. Therein, the record indicates that complainant was
granted 2.98 hours of annual leave for March 26, 2003. The record also
contains copies of the time and attendance records of the two co-workers
named by complainant. Therein, the record indicates that on March 26,
2003, the two co-workers worked 9.95 hours and 8.83 hours, respectively,
with no time off from work.
Finally, we find that complainant has not demonstrated that the agency's
articulated reasons for its actions were a pretext for discrimination.
Accordingly, the agency's decision finding no discrimination regarding
claims (1) - (3) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 29, 2006
__________________
Date
1The record reveals that complainant filed a grievance concerning the
March 17, 2003 LOW. The grievance was resolved by providing that the
LOW would be rescinded.